Our View: Properly closing the 'upskirt' loophole

Thursday

Mar 6, 2014 at 4:28 PMMar 6, 2014 at 8:48 PM

Thanks to a ludicrous legal loophole, women across the Bay State are now forced to think twice about wearing a skirt. A Massachusetts Supreme Judicial Court decision Wednesday ruled “upskirt” photos wrong but legal.

Editorial Board

Thanks to a ludicrous legal loophole, women across the Bay State are now forced to think twice about wearing a skirt. A Massachusetts Supreme Judicial Court decision Wednesday ruled “upskirt” photos wrong but legal.

The state’s highest court overruled a lower court that upheld charges of a man arrested by transit police, who had set up a sting to bust the creep who was taking cellphone photos up the skirts of women riding the subway in Boston. While the SJC’s decision may be legally sound, it defies all logic — and shocks the sensibilities of any decent human being.

“A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is ‘partially nude,’ no matter what is or is not underneath the skirt by way of underwear or other clothing,” the court ruled.

While the SJC’s “upskirting” ruling is outrageous, justices’ hands were tied by a loophole in the state’s Peeping Tom laws. The SJC made clear in its ruling that while such photos should be illegal, they’re technically not. It’s now the responsibility of lawmakers to change that with legislation specifically outlawing the practice, an action that other states — including New York and Florida — have taken to keep up with technology.

Senate President Therese Murray spoke for many women — and men, for that matter — in expressing her outrage with the ruling. “We have fought too hard and too long for women’s rights to take the step backward,” Murray said in a statement. “I am in disbelief that the courts would come to this kind of decision and outraged at what it means for women’s privacy and public safety.”

Prosecutors could do little other than warn women to be alert and urge decency. “This action is immoral and reprehensible; don’t do it,” said Suffolk County District Attorney Dan Conley, whose office had interpreted the state’s Peeping Tom laws to apply to upskirting.

To their credit, both Murray and House Speaker Robert DeLeo promised to shepherd the legislation clarifying the law swiftly through their respective chambers, but the legislative process is notoriously slow. Since cellphones with camera capabilities are so common these days and lewd images can be broadcast over the Internet instaneously, it is imperative that this flaw be repaired without delay to protect potential victims.

Recognizing the urgency, on Thursday, legislative staffers got to work drafting the fix to move swiftly through the Legislature and onto Gov. Deval Patrick’s desk.

While it is imperative to close the loophole permitting “upskirt” photos now, swiftly drafted and approved legislation could contain some flaws. Once the loophole is closed, it may make sense to closely review the bill and potentially draw more comprehensive legislation to be introduced, debated and amended through the normal legislative process.